Citation Nr: 21072808 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-65 510 DATE: December 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is due to acoustic trauma incurred during combat service. 2. The Veteran's tinnitus is due to acoustic trauma incurred during combat service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to January 1970, to include service in the Republic of Vietnam. His decorations include the Bronze Star Medal and Vietnam Cross of Gallantry with Palm. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran and one witness testified before the undersigned Veterans Law Judge at a virtual Board hearing. The Veteran's representative requested that the record be held open for 90-days after the hearing for the submission of additional evidence. No evidence was received during that time window. The issue of entitlement to service connection for PTSD has been broadened to encompass any acquired psychiatric disorder, to include depression. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the case of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran's service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but also the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including hearing loss and tinnitus (categorized as an organic disease of the nervous system), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for right ear hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran relates his right ear hearing loss and tinnitus to acoustic trauma incurred during combat service in Vietnam. See July 2021 Board hearing transcript (Tr.) at 20-21; July 2015 Notice of Disagreement. The Board agrees. Regarding the first element of service connection for right ear hearing loss, a current disability, the February 2018 VA audiology examination revealed hearing impairment that meets the criteria of 38 C.F.R. § 3.385. Thus, the first element of service connection for right ear hearing loss is met. Regarding the first element of service connection for tinnitus, tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layperson, such as the Veteran, is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). In this regard, the Veteran has competently and credibly reported the presence of tinnitus and has been diagnosed with the same. Tr. 20-29; August 2019 VA audiology note; February 2018 VA audiology examination; November 2014 VA audiology consult note. Accordingly, the first element of service connection for tinnitus is met. Regarding the second element of service connection, in-service incurrence, the Veteran has competently and credibly testified that he was once exposed to incoming mortar and rocket attacks, after which he experienced ringing in his ears and difficulty hearing for two or three days, as well as regular incoming fire and shelling, while in Vietnam. See November 2020 Board Hearing Transcript at 6-7; 29. He also reported regular helicopter noise exposure from working at the mess hall, which was right near the flight line, with little relief from ear plugs. Id. at 20. The Board finds that the Veteran's reports are credible, and concedes in-service acoustic trauma resulting in tinnitus and diminished hearing for a number of days as consistent with the circumstances of his combat service (as reflected by his receipt of the Bronze Star Medal and Vietnam Cross of Gallantry with Palm), and element two of service connection is met. 38 U.S.C. § 1154(b). Regarding the final element of service connection, the only nexus opinion of record for right ear hearing loss and tinnitus from the February 2018 audiologist is against the claim. For right ear hearing loss, the audiologist opined that it was less likely than not related to active service, despite finding a permanent threshold shift in service. To support this opinion, the audiologist stated "Normal hearing at entrance exam. Thresholds had shifted up to 20 dB at discharge exam but remained within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise induced hearing loss will not progress once it is stopped.'" This opinion is inadequate because it is based primarily on the lack of hearing loss at service separation, which is an inadequate basis to support a negative opinion. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Second, the opinion failed to consider the possibility of delayed-onset hearing loss. Third, the opinion failed to provide a citation for the quoted material. Without a citation, the Board is unable to evaluate the material's probative value. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (holding the Board must conduct a holistic evaluation of medical texts and treatises to determine whether they support the proposition for which they are cited). Notably, however, the February 2018 audiologist provided a favorable nexus opinion for the left ear, noting that the Veteran's separation audiogram revealed a mild loss at 6kHz and failed to record a threshold at 4kHz. The Veteran's right ear was exposed to the same hazardous noise in service that caused service-connected impairment in the left ear. Moreover, at the July 2021 Board hearing, a witness testified that the Veteran's hearing has gradually deteriorated over the past 40 years, or around 1971. See November 2020 Board Hearing Transcript at 27. The witness also testified that the Veteran has always had trouble hearing as long as she has known him for about 40 years. Id. at 26. The Board finds the Veteran's report of an onset of chronic disease in the form of hearing loss and tinnitus during his combat service that has continuously worsened over time both competent and credible and supported by his witness testimony. Regarding a nexus for tinnitus, the February 2018 audiologist opined that it was less likely than not caused by active service. To support this opinion, the audiologist reasoned that the records contain no complaints of tinnitus in service and no "audiology treatment" since service. This supporting rationale is factually inaccurate and, therefore, the opinion is inadequate. In this regard, a November 2014 VA audiology consult note states that the Veteran reported constant bilateral tinnitus and characterizes the onset date as "historical," which the Board interprets to mean that the condition has been chronic for many years and difficult to pinpoint a precise onset. In addition, an August 2019 VA audiology evaluation note indicates that the Veteran reported bilateral tinnitus on a daily basis. Furthermore, credible testimony was offered at the Board hearing that establishes in-service onset and continuous symptoms. Specifically, the Veteran testified that he has noticed tinnitus on and off over the years, to include after incoming mortar attacks. See November 2020 Board Hearing Transcript at 25, 29. And significantly, as already noted, the Veteran's VA audiology treatment records indicate a historical onset date for tinnitus. See November 2014 VA audiology consult. The record contains some evidence that diminishes the probative value of the favorable evidence discussed above. For example, the Veteran initially testified that he did not remember whether tinnitus began in service. See November 2020 Board Hearing Transcript at 22. In addition, the February 2018 VA examination indicates the Veteran stated that he did not know when the condition began, whether both ears were affected, and he had not noticed any ringing within the prior year. However, the Board finds that this evidence does not diminish the probative value of favorable evidence of record. In this regard, VA treatment records show that the Veteran has been seen for memory impairment. See February 2019 VA mental health note; February 2017 VA psychiatric progress note; December 2016 VA psychology note; September 2016 VA psychiatry note. Furthermore, there is sufficient medical evidence of record showing that the Veteran has reported, been diagnosed with, and is receiving treatment for hearing loss and tinnitus to overcome any inconsistencies in his lay reports. In short, the Board views inconsistencies in the Veteran's reporting as aberrations due to memory problems or misunderstanding what was asked of him. In sum, the evidence of record establishes that the Veteran has right ear hearing loss, tinnitus, and in-service exposure to hazardous noise to which the combat presumption attaches. See Reeves, supra. The record also contains one negative nexus opinion that lacks probative value due to its inadequate supporting rationale. Remand to obtain an adequate nexus opinion is not necessary, however, as the record contains probative evidence showing in-service onset and continuous symptoms for both claimed hearing disabilities. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013; Andrews v. McDonough, 34 Vet. App. 216 (2021) (explaining that remand should not be undertaken if further development might only lead to a denial and the evidence of record is sufficient to grant the claim); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination."). Specifically, credible testimony was offered that the Veteran noticed hearing loss in service, he experienced gradual deterioration of hearing over the past 40 years, his right ear was exposed to the same noise that caused service-connected left ear hearing loss, and there is no probative evidence of record to the contrary. In addition, the Veteran credibly reported that he experienced ringing in the ears in service and other evidence of record indicates that tinnitus has persisted over the years. Accordingly, all the elements of service connection for right ear hearing loss and tinnitus are met, and the benefits sought on appeal are granted. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. The Veteran asserts that he has an acquired psychiatric disorder due to stressors experienced during combat service in the Republic of Vietnam. See November 2020 Board Hearing Transcript at 2-20; June 2015 VA Forms 21-0781; April 2015 Statement in Support of Claim. The July 2015 C&P examiner opined that the Veteran's psychiatric condition "does not appear to be a developed mental disorder specific to military service." (emphasis added). This opinion is inadequate due to its speculative and equivocal language. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (holding that a speculative medical opinion provides neither positive nor negative support for the Veteran's claim); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "may or may not have been"). Remand is warranted to obtain an adequate etiology opinion. Furthermore, due to the length of time since the last C&P examination in 2015, remand is warranted to obtain an updated examination. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Then schedule the Veteran for a VA examination to address the current nature and etiology of his psychiatric disorder. The claims file should be made available to and reviewed by the examiner and all findings should be reported in detail. After reviewing the claims file, the examiner must address the following: (a) Identify any and all psychiatric diagnoses present since April 2015, even if resolved. A diagnosis of PTSD should be explicitly ruled in or excluded. (i) If a diagnosis of PTSD is not warranted, the examiner should discuss the basis for this conclusion. (ii) If a diagnosis of PTSD is warranted, specify whether that diagnosis is related to the Veteran's fear of hostile military or terrorist activity or his combat service in Vietnam. (iii) If a diagnosis of PTSD is warranted and is not due to fear of hostile military or terrorist activity or combat service in Vietnam, specify the stressor or stressors upon which that diagnosis is based. (b) If a psychiatric disability other than PTSD is diagnosed (to include depression), the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that such disability had its onset in or is otherwise related to conceded stressors from his combat service in Vietnam. In addressing this question, the examiner must concede and discuss the Veteran's reports of sleep problems in Vietnam and mental health problems since leaving service that he self-medicated with alcohol. See November 2020 Board Hearing Transcript 13-14 (Veteran reporting no sleep in Vietnam that he self-medicated with alcohol after service). Please concede these symptoms, despite lack of documentation, and determine whether a nexus to service is "medically plausible" based on the same. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.